Document Content

DECREE No. 177/2004/ND-CP OF OCTOBER 12, 2004 DETAILING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE 2003 LAW ON COOPERATIVES

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 26, 2003 Law on Cooperatives;

At the proposal of the Minister of Planning and Investment,

DECREES:

Article 1.- Regulation scope and application subjects

1. This Decree details the implementation of a number of articles of the 2003 Law on Cooperatives.

2. This Decree applies to:

a/ Cooperatives and unions of cooperatives in the branches and domains of the national economy, which are established and operate under the 2003 Law on Cooperatives;

b/ Cooperatives and unions of cooperatives, which were established, organized and operated under the 1996 Law on Cooperatives but now shift to operate under the 2003 Cooperative Law.

Article 2.- Principles for organization and operation of cooperatives

1. Voluntariness:

a/ Individuals, households, legal persons, State officials and public employees, that fully meet the conditions prescribed in Article 10 of this Decree, agree to cooperatives' charters and apply for joining or leaving cooperatives.

For members of cooperatives that registered operations under the 1996 Cooperative Law, applications for joining the cooperatives are exempted, which, however, are required if they wish to leave the cooperatives;

b/ The participation of a cooperative in a union of cooperatives must be voted for adoption by the congress of cooperative members.

2. Democracy, equality and publicity:

a/ All cooperative members shall take part in management of their cooperative through voting and decide on the cooperative's issues. The cooperative members' votes are of equal value;

b/ Cooperative members have the right to propose and request the Managing Board and the Control Board to explain and answer questions on issues of their concern. If receiving no answers, they shall have the right to bring such issues to the congress of cooperative members for settlement;

c/ Cooperative shall make public to their members at the congresses of cooperative members or send regular notices directly to each member or group of members living in the same area or publicize in the daily bulletins at their headquarters: the production and business results; the establishment of funds; the distribution of profits according to the members' capital contribution levels and extent of the use of the cooperative's services; the social contributions; the rights and obligations of each cooperative member, except for issues being business secrets or production technological know-hows as stipulated by the cooperative members' congresses.

3. Autonomy, self-responsibility and mutual benefit:

a/ Cooperatives shall decide by themselves on: the selection of production and business plans; the distribution of production and business outcomes; the setting up and levels of deduction for setting up of funds; the wage and salary levels for people working for the cooperatives;

b/ Cooperatives shall select and decide by themselves on forms and time of capital mobilization; take initiative in using their capital and assets; take initiative in seeking markets and customers and signing contracts; organize the performance of contracts and take responsibility before law for the signed contracts;

c/ Cooperatives shall take self-responsibility for the risks arising in their operation process. Cooperative members shall, within the scope of their contributed capital, take joint responsibility for the risks of the cooperatives, and jointly decide on remedies for such risks;

d/ Cooperative members shall jointly enjoy benefits according to the provisions of Clauses 1, 2, 3, 4 and 5, Article 18 of the 2003 Law on Cooperatives.

4. Cooperation and community development:

a/ Cooperative members must have sense of bringing into play the spirit of collective building and cooperation with one another in their cooperatives and in social communities;

b/ Cooperatives shall cooperate with one another in production and business as well as in building and development of cooperative movements.

Article 3.- Rights of cooperatives

1. Cooperatives may take initiative in selecting production and/or business lines not banned by law.

2. In cases where cooperatives deal in conditional production and/or business lines:

a/ For production and/or business lines that require business licenses, the cooperatives have the right to deal therein after being granted business licenses;

b/ The granting of business licenses for conditional production and/or business lines under law provisions shall be effected independently from the granting of business registration certificates to cooperative;

c/ For conditional production and/or business lines not requiring business licenses, the cooperatives have the right to deal therein after fully meeting the prescribed business conditions and committing to strictly abide by such conditions throughout their business operation process;

d/ The cooperatives' at-law representatives shall take responsibility for strict compliance with the prescribed business conditions. If the cooperatives conduct business without fully meeting the prescribed conditions, their at-law representatives shall be responsible before law for such business.

3. In case of production and/or business lines that require legal capital:

a/ The cooperatives can deal in production and/or business lines that require legal capital after they acquire enough legal capital as prescribed by law. The competent agency in charge of State management over legal capital and the agency competent to certify legal capital shall provide detailed guidance on legal capital levels and procedures for certification of legal capital for production and/or business lines that require the legal capital;

b/ The cooperatives' at-law representatives shall bear responsibility for the truthfulness and accuracy of the legal capital amount certified at the time of their establishment as well as in their operation process. The head of the competent agency in charge of State management over legal capital and the head of the legal capital-certifying agency shall jointly be responsible for the accuracy of the certified legal capital amount.

4. If dealing in production and/or business lines that require professional practice certificate, the cooperative must have at least one Managing Board member having such a professional practice certificate.

5. Inventions, utility solutions, industrial designs, trademarks, goods appellations of origin, business secrets, technological know-hows and other intellectual property objects owned by cooperatives shall be protected according to the provisions of law.

6. Cooperatives have the right to complain about acts of infringing upon their legitimate rights and interests. State agencies shall have to settle such complaints according to their competence as well as the provisions of the Law on Complaints and Denunciations and relevant law provisions.

7. Cooperatives shall also have other rights as prescribed in Clauses 2, 3, 4, 5, 6, 7, 8, 10 and 12 of Article 6 of the 2003 Law on Cooperatives.

Article 4.- Social insurance applicable to cooperatives

1. The compulsory payment of social insurance premiums by cooperatives is prescribed as follows:

a/ Basing themselves on their production and business conditions, cooperatives shall have to formulate and promulgate, through the congresses of cooperative members, levels of wage and salary paid to cooperative members and laborers regularly working for cooperatives. These wage and salary levels must be registered with the labor State management agencies of the provinces or centrally-run cities where cooperatives are headquartered and must be publicized within the cooperatives;

b/ Cooperatives, cooperative members and laborers regularly working for cooperatives, who enjoy wages and salaries paid by cooperatives, shall pay compulsory social insurance premiums according to the provisions of the Labor Code.

2. Cooperative members and laborers not subject to compulsory social insurance shall voluntarily pay social insurance premiums according to the provisions of the Labor Code.

Article 5.- Founding members

1. Founding members of a cooperative must be Vietnamese citizens aged full 18 years or older and having full civil act capacity under the provisions of the Civil Code; be competent representatives of households or legal persons, have law knowledge about cooperatives and make written commitments to build and develop the cooperative founded at their initiatives.

2. Founding members shall report in writing to the commune-level People's Committee of the locality, where the cooperative is to be headquartered, on the establishment, headquarters location, production and business orientations and operation plan of the cooperative and shall concurrently conduct work of propagation and mobilize individuals, households and legal persons as well as State officials and public employees to join the cooperative if they so wish; work out production and business plans; draft the cooperative's charter and perform other tasks in order to organize the cooperative-founding conference.

Article 6.- Establishment of the managerial apparatus and executive apparatus of cooperatives

1. For a cooperative that sets up a managerial-cum- executive apparatus:

a/ The number of members of the Managing Board and Control Board shall be decided by the cooperative-founding conference, based on the number of cooperative members at the time of its establishment. In the course of operation, the congress of cooperative members shall decide to appropriately increase or reduce the number of members of the Managing Board and the Control Board and send report thereon to the business registry office;

b/ The founding conference or congress of cooperative members shall directly elect the Managing Board and the manager of the cooperative from among the Managing Board members; and elect the Control Board and the head of the Control Board from the Control Board members;

c/ The cooperative manager shall concurrently be the chairman of the Managing Board and have the powers and tasks prescribed in Clause 2, Article 27 and Points b, c and e, Clause 2, Article 28 of the 2003 Law on Cooperatives;

d/ The founding conference or congress of cooperative members shall decide on the number of deputy managers of the cooperative so that the Managing Board may select them from its members or cooperative members.

2. For a cooperative that separately sets up the managerial apparatus and the executive apparatus:

a/ The number of members of the Managing Board and the Control Board shall comply with the guidance at Point a, Clause 1 of this Article;

b/ The founding conference or the congress of cooperative members shall directly elect the Managing Board and its chairman from its members; and directly elect the Control Board and its head from its members;

c/ The Managing Board shall appoint and dismiss the manager of the cooperative (being a cooperative member), or hire or terminate a contract on hiring the manager of the cooperative (being not a cooperative member) under the resolution of the congress of cooperative members;

d/ The cooperative manager shall have the powers and tasks prescribed in Clause 3, Article 28 of the 2003 Law on Cooperatives;

e/ The number of deputy managers and the selection of deputy managers of the cooperative shall comply with the guidance at Point d, Clause 1 of this Article.

Article 7.- Formulation of charters, internal rules and regulations of cooperatives

1. Upon its establishment, each cooperative must have its own charter. The cooperative's charter must conform to Article 12 of the 2003 Law on Cooperatives, the Government-prescribed model charter of cooperatives and the specific conditions of its production and/or business lines.

2. Founding members shall draft the cooperative's charter and submit it to the founding conference for discussion and adoption.

3. Each article or clause of the charter shall be discussed and adopted on the principle of majority and must be voted for by more than 50% of cooperative members. In case of voting, if the number of votes for and the number of votes against are equal, the side with the vote of the person presiding over the conference shall prevail.

4. Those contents which have not yet been approved by more than 50% of cooperative members attending the conference shall be further discussed at the subsequent conferences and inscribed in the charter only when the number of votes for them reaches the one prescribed in Clause 3 of this Article.

5. In cases where there should be specific provisions for the cooperative’s concrete activities, which cannot be fully covered by its charter, the Managing Board shall formulate separate internal rules and regulations for such activities and submit them to the congress of cooperative members for adoption.

Article 8.- Business registration

1. A cooperative may select its business registration place, being either a provincial- or district-level business registration agency. In the course of operation, the cooperative may change the business registration place to suit its operation conditions; when changing the business registration place, it must send an application to the former business registration agency for the withdrawal of its dossier and submission thereof to the new business registration agency.

2. The representative of the to be-established cooperative or the cooperative’s at-law representative shall submit the business registration dossier at the selected business registration agency and shall take responsibility for the accuracy and truthfulness of the business registration dossier.

3. If the cooperative fully meets the business registration conditions prescribed in Clause 1, Article 15 of the 2003 Law on Cooperatives, the business registration agency already selected by the cooperative must grant it a business registration certificate according to the provisions of Point a, Clause 2, Article 15 of the 2003 Law on Cooperatives.

4. The business registration results must be periodically reported and notified to concerned agencies according to the following provisions:

a/ Monthly, the district-level business registry offices shall report to the provincial-level business registry offices on the situation of business registration by cooperatives in their districts; the provincial-level business registry offices shall notify their attached district-level business registry offices of the situation of business registration by cooperatives thereat;

b/ Quarterly, the business registry offices of all levels shall notify the State management agencies of the same level that manage cooperatives in each domain of the business registration situation and changes of cooperatives in their respective localities.

Article 9.- Establishment of cooperative-attached enterprises

1. Cooperatives may set up attached enterprises according to the model of one-member limited liability companies under the provisions of the Law on Enterprises.

2. Cooperatives are owners of one-member limited liability companies.

3. The legal status, rights and obligations of cooperatives toward one-member limited liability companies shall comply with the provisions of the Law on Enterprises and relevant legal documents.

Article 10.- Conditions to become cooperative members

1. For individuals:

a/ Being Vietnamese citizens aged full 18 years or older, having full civil act capacity;

b/ Filing applications for joining cooperatives; agreeing to the cooperatives' charters, internal rules and regulations;

c/ Contributing capital according to provisions of the cooperatives' charters; contributing their labor in form of direct management, direct participation in labor and production, provision of knowledge, business and scientific and technological consultancy for the cooperatives, depending on the cooperatives' demands;

d/ Individuals failing to fully meet the conditions prescribed at Points a, b and c, Clause 1 of this Article; being examined for penal liability; serving imprisonment penalties; being deprived by courts of the right to practice their professions due to crime commission under law provisions or being in the period of serving the decisions on being sent into education camps or medical treatment establishments must not be cooperative members.

2. For State officials and public employees:

a/ Getting written consents of the heads of the agencies directly managing them;

b/ Fully meeting the conditions prescribed at Points b and c, Clause 1 of this Article;

c/ Being not allowed to hold the positions of the chairman or member of the Managing Board; the head or members of the Control Board; the manager or deputy manager of the cooperatives; the chief accountant or accountants and other professional positions in the cooperatives;

d/ State officials and public employees failing to fully meet the conditions prescribed at Points a, b and c, Clause 2 of this Article; working in the domains classified as State secrets; officers, non-commissioned officers and professionals in the people's armed force units must not be cooperative members.

3. For households:

a/ Being households whose members share the same properties for economic activities such as land areas being used for agricultural production, forestry or fishery; other fixed assets in service of the households' production and business;

b/ Households must appoint their representatives with authorization papers. The households' representatives must fully meet the conditions prescribed for individuals at Points a, b and c, Clause 1 of this Article and comply with the provisions of the cooperative's charter. If wishing to change their representatives, the households must file written requests to the Managing Boards for consideration and decision;

c/ Households that fail to fully meet the conditions prescribed at Points a and b, Clause 3 of this Article must not be cooperative members.

4. For legal persons:

a/ Being organizations or agencies (excluding social funds and charity funds) as prescribed by the Civil Code or the cooperatives' charters;

b/ Filing the application for joining cooperatives as prescribed at Point b, Clause 1 of this Article. The applicant must be the legal persons' at-law representatives, participate in the operation of the cooperatives and perform the cooperative members' obligations according to the cooperatives' charters. The legal persons' at-law representatives may authorize other individuals being members of their leadership to act as representatives for joining the cooperatives unless otherwise provided for by the cooperatives' charters;

c/ Contributing capital and labor to the cooperatives according to their charters;

State agencies and people's armed force units must not use the State's assets and public funds to contribute capital to cooperatives;

d/ Legal persons that fail to fully meet the conditions prescribed at Points a, b and c, Clause 4 of this Article must not be cooperative members.

Article 11.- Organization of the congress of deputies of cooperative members

1. Cooperatives with more than 100 members may organize congresses of deputies of cooperative members:

2. Cooperatives with between over 100 and 500 members shall have 30% or more of the total members to attend the deputies' congresses; cooperative with over 500 members shall have 20% or more of their total members to attend the deputies' congresses.

3. Cooperatives' charters shall prescribe in detail the formalities for election of deputies to the congresses of deputies of cooperative members.

Article 12.- Organization of extraordinary congresses of cooperative members

1. The Managing Boards shall convene extraordinary congresses of cooperative members in the following cases:

a/ To handle issues that fall beyond the competence of the Managing Boards or the Control Boards;

b/ At least one third of the cooperative members file separate applications or jointly sign a common application sent to the Managing Boards or the Control Boards, requesting the latter to convene extraordinary congresses of cooperative members to handle the same issue as mentioned in the application(s). Within 15 days after fully receiving the applications of at least one third of cooperative members, the Managing Boards shall have to convene extraordinary congresses of cooperative members.

2. The Control Boards shall convene extraordinary congresses of cooperative members in the following cases:

a/ If past 15 days after fully receiving the application(s) of at least one third of cooperative members mentioned at Point b, Clause 1 of this Article the Managing Boards fail to convene congresses of cooperative members, the Control Boards shall have to convene extraordinary congresses of cooperative members to handle issues mentioned in the applications;

b/ When there appear acts of violating the legislation on cooperatives, cooperatives’ charters, internal rules or regulation or resolutions of the congresses of cooperative members and despite the requests of the Control Boards, the Managing Boards still fail to take or have unsuccessfully applied preventive measures.

3. If the Control Boards fail to convene extraordinary congresses as prescribed in Clause 2 of this Article, the cooperative members shall request in writing intervention by the business registry offices. Within three months after the business registry office receives the written requests, if the cooperatives still fail to convene extraordinary congresses of cooperative members, the business registration agencies shall report such to the People's Committees of the localities where the business registration certificates were issued in order to carry out the procedures for compulsory dissolution of the cooperatives according to the provisions of Clause 2 of Article 21 of this Decree.

Article 13.- Termination of the cooperative membership

The termination of the cooperative membership in the cases prescribed in Clause 1, Article 20 of the 2003 Law on Cooperatives shall be handled as follows:

1. For cases prescribed at Points a, b, c and e of Clause 1, the Managing Boards shall consider, compile dossiers and take initiative in handling them. The handling results and dossiers shall be presented to the nearest congress of cooperative members for adoption;

2. For the cases prescribed at Point d of Clause 1, the Managing Boards shall compile dossier to expel members from the cooperatives and submit such the congresses of cooperative members for decision;

3. The rights and obligations of cooperative members in the cases prescribed at Clauses 1 and 2 of this Article shall comply with the provisions of the cooperatives' charters.

Article 14.- Capital contributed by cooperative members; increase and decrease of charter capital of cooperatives

1. Capital may be contributed to cooperatives in Vietnamese currency, foreign currencies, properties, land use right, intellectual property right or other valuable papers:

a/ In cases where capital is contributed in foreign currencies, its value must be converted into Vietnam dong according to the exchange rates announced by the State Bank of Vietnam at the time of capital contribution;

b/ In cases where capital is contributed in properties, land use right, intellectual property right or other valuable papers, it must be converted into Vietnamese currency and comply with specific conditions prescribed in the cooperatives' charters. The determination of contributed capital value in these cases shall be agreed upon between the Managing Board and the capital contributors in accordance with the market prices at the time of capital contribution. In case of necessity, valuation boards of cooperatives may be set up, comprising representatives of the Managing Boards, the Control Boards and cooperative members so as to ensure the objectivity, publicity and transparency.

Properties, land use right, intellectual property right and other valuable papers contributed as capital to cooperatives shall be the common properties of such cooperatives;

c/ In cases where capital is contributed in wages, the contributed capital value shall be calculated as equal to the total wage amounts paid by the cooperatives to laborers who have not yet received such amounts by the time of capital contribution.

2. The maximum level of capital contributed by a cooperative member shall be prescribed by the cooperatives' charters, which, however, must not exceed 30% of the cooperatives' charter capital at the time of capital contribution by cooperative members.

3. The time, the level of the first capital contribution, the time limit for full capital contribution already registered by cooperative members:

a/ For newly-established cooperatives, cooperative members must make the first capital contribution when the cooperatives are granted business registration certificates;

b/ For operating cooperatives, cooperative members shall make their first capital contribution after the congresses of cooperative members adopt decision on their admission to the cooperatives;

c/ The level of first capital contribution shall not be lower than 50% of the registered capital amount;

d/ The time limit for full contribution of capital amount already registered by cooperative members shall be one year at most, counting from their first capital contribution.

4. Cooperative members shall have their contributed capital returned when terminating their cooperative membership according to the provisions of Clause 2, Article 31 of the 2003 Law on Cooperatives. The form and time limit for returning contributed capital to cooperative members shall comply with the cooperative charters' provisions on capital contribution, the provisions of Point b, Clause 1 of this Article and relevant law provisions.

5. Increase and decrease of charter capital of cooperatives:

a/ A cooperative's charter capital shall increase when the annual congress of cooperative members decides to raise the minimum level of contributed capital in order to mobilize more capital from all cooperative members, or when one or a number of cooperative members additionally contribute capital within the limit that each contributes no more than 30% of the cooperative's charter capital;

b/ A cooperative's charter capital shall decrease when capital contributed by cooperative members is returned to them while the minimum contributed capital level is not raised. If due to the decrease of the charter capital, a cooperative member's contributed capital amount exceeds 30% of the cooperative's charter capital, the contributed capital of that member shall be adjusted at the nearest congress of cooperative members.

c/ Upon any change in its charter capital, a cooperative must supplement it to the charter of the cooperative and notify the business registry office and the State agency managing legal capital thereof (if the cooperative deals in the production and/or business lines that require legal capital).

Article 15.- Reception and use of support capital of the State, domestic and/or foreign organizations and individuals

1. Cooperatives are allowed to receive and use support capital of the State as well as domestic and/or foreign organizations and/or individuals under agreements between the involved parties, in accordance with current law provisions.

2. The use of State's support capital is prescribed as follows:

a/ Non-refundable support capital of the State for cooperatives shall be accounted into the indivisible capital of such cooperatives;

b/ Interest-free refundable support capital of the State for cooperatives shall be considered the cooperatives' debts to the State.

3. If the support capital involves foreign elements, the reception and use thereof must comply with Vietnamese law and international agreements, which the Socialist Republic of Vietnam has signed or acceded to.

Article 16.- Working capital of cooperatives

1. Working capital of a cooperative includes: capital contributed by cooperative members; capital transferred lawfully upon the merger or consolidation of the cooperative; joint-venture capital; capital accumulated by the cooperative; the cooperative's idle funds; support capital of the State, domestic and foreign organizations and individuals; donations and gifts; loan capital provided by credit institutions and banks; appropriated capital amounts and other lawfully-mobilized capital amounts.

2. Cooperatives shall prescribe in detail the management and use of each kind of capital in accordance with the provisions of the 2003 Law on Cooperatives and relevant provisions of their charters or the Regulation on the management and use of cooperatives' capital.

Article 17.- Setting up of funds of cooperatives

1. The after-tax profit of a cooperative shall be used to offset losses (if any) transferred from the previous year according to the relevant law provisions. The remaining amount shall be partly deducted by cooperatives for setting up of the compulsory funds, including the production development fund and the reserve fund. The deduction levels for the setting up of these two funds shall be decided by the congresses of cooperative members, which, however, must not be lower than 20% of the after-tax profit, for the production development fund, and 5%, for the reserve fund.

2. The deduction or non-deduction for setting up of other funds shall be decided by the congress of cooperative members, depending on the conditions of the cooperatives.

3. The purposes and mode of managing and using cooperatives' funds must be clearly determined in their charters or internal rules or regulations on financial management and relevant law provisions.

Article 18.- Assets of cooperatives

1. Assets under a cooperative's ownership shall be formed from its working capital. The management and use of the cooperative's assets, including the purchase, sale, transfer, donation, presentation or other forms, must comply with the provisions of the cooperative's charter or financial management regulation, the resolutions of the congress of cooperative members and relevant law provisions on financial management.

2. Infrastructure works, architectural objects as well as cultural and social welfare projects in service of the local population community, that are formulated from the production development fund, welfare fund, non-refundable support capital of the State as well as domestic and/or foreign organizations and individuals; donations and gifts being indivisible assets of the cooperative.

Article 19.- Handling of assets and capital of cooperatives upon their dissolution

1. Indivisible assets of a cooperative prescribed in Clause 2, Article 18 of this Decree shall be handed over to the local administration for management and use for community service purposes. The remaining value of these assets shall be handled as follows:

a/ The value of assets formed from the State's non-refundable support capital shall be transferred to the budget of the locality where the cooperative is headquartered;

b/ The value of assets formed from capital and labor contributions of cooperative members; support capital of domestic and/or foreign organizations and individuals, and donations and gifts shall be transferred or not transferred to the local budget under decision of the congress of cooperative members. In cases where the congress of cooperative members decides not to transfer the remaining value of those assets, the local budget must repay such value to the cooperative.

2. Other assets, including the intellectual property right contributed by cooperative members to the cooperative, shall be handled according to the provisions of the cooperative's charter and relevant law provisions. Particularly, asset being land formed from the capital being the land use right contributed by cooperative members and land assigned by the State to the cooperative for use shall be handled according to the provisions of land legislation.

3. Order of handling capital and assets of a cooperative upon its dissolution:

a/ Recovering all assets and capital owed to, or kept for, the cooperative by its members as well as by organizations and/or individuals outside the cooperative;

b/ Liquidating the existing assets, raw materials and materials, products and commodities (excluding indivisible assets);

c/ Paying secured debts according to law provisions;

d/ Paying the dissolution expenses, including expenses for asset recovery and liquidation and debt retrieval;

e/ Paying unsecured debts;

f/ Paying to the State: taxes and budget remittances; interest-free refundable subsidies, and interest-bearing loans provided by the State (if any);

g/ Returning contributed capital according to the cooperative's charter and additionally- contributed capital of cooperative members.

In cases where the total capital amount at the time of dissolution is lower than the total payable amount, the amounts prescribed at Points c and d shall be prioritized for full payment; the other amounts shall be paid according to the percentage of the remaining capital amount over the total of payable amounts prescribed at Points e thru g.

4. The handling of remaining capital and funds after fully paying debts and expenses for the cooperative's dissolution shall be decided by the congress of cooperative members in accordance with the cooperative's charter and relevant law provisions.

Article 20.- Handling of losses

A cooperative's losses arising in a year shall be handled as follows:

1. To be offset with revenues of individuals and/or organizations bearing joint responsibility under law provisions and charter of the cooperative;

2. To be offset with indemnities paid by insurance organizations from which the cooperative has purchased insurance;

3. The cooperative shall use its pre-tax profit to offset losses of the previous year according to the provisions of the Law on Enterprise Income Tax; the deficit shall be covered by the cooperative's after-tax profit under decision of the congress of cooperative members;

4. In cases where the above-mentioned amounts are still insufficient to offset losses, the deficit shall be covered by the reserve fund under decision of the congress of cooperative members, the cooperative's charter or financial management regulation;

5. If all the above-mentioned revenues have been used but remain not enough for offsetting the actual losses, the remaining loss amount shall be carried forward to the subsequent year under the provisions of the tax legislation.

In cases where the revenues mentioned in Clauses 1 and 2 of this Article are bigger than the losses, the surplus shall be accounted into the cooperative's irregular incomes.

Article 21.- Compulsory dissolution of cooperatives

1. Cooperatives shall compulsorily dissolve in one of the cases defined in Clause 2, Article 42 of the 2003 Law on Cooperatives.

2. Procedures for compulsory dissolution of a cooperative are as follows:

a/ The agency that has granted business registration certificate to the cooperative shall submit the compulsory dissolution dossier to the People's Committee of the same level;

b/ The People's Committee shall issue dissolution decision and set up the dissolution council. The dissolution council's chairman shall be the representative of the People's Committee while its members shall be the representatives of the provincial federation of cooperatives (if the cooperative is a member of that federation), the commune-level administration of the locality where the cooperative is headquartered, the Managing Board and Control Board of the cooperative and cooperative members;

c/ The council shall carry out procedures for dissolution of the cooperative under decision of the People's Committee and shall dissolve after completing the dissolution work.

3. The dissolution funding shall be covered by the remaining financial sources of the cooperative. In case of deficit, the local (provincial-level) cooperative development fund shall be used.

Article 22.- Union of cooperatives

1. A union of cooperatives is an economic organization jointly established by cooperatives of the same or different production or business lines, that wish and voluntarily contribute capital to the union and that take joint responsibility for financial obligations and costs of operation of the union. The union of cooperatives shall be organized and operate according to the principles of organization and operation of cooperatives.

2. A union of cooperatives must have four member cooperatives or more.

3. The union of cooperatives must have its own charter of organization and management that complies with the provisions of the Law on Cooperatives.

4. The union of cooperatives is allowed to deal in all trades and business lines not banned by law. When dealing in conditional trades or business lines or those that require legal capital or professional practice certificates, the provisions of Clauses 2, 3 and 4, Article 3 of this Decree for cooperatives shall apply.

5. The union of cooperatives' at-law representative must be an individual, who is currently a member of one of the member cooperatives.

6. Founding members of the union of cooperatives:

a/ Being at-law representatives of the cooperatives, who initiate the foundation of the union of cooperatives and join in operations of such union of cooperatives.

b/ Founding members of the union of cooperatives must send reports on the establishment, operation orientations and plan of the union of cooperatives to the district-level People's Committee of the locality where the union's head office is to be located; and at the same time, conduct propagation among and mobilize cooperatives that wish to join the union of cooperatives; formulate production and business plans; draft charter of the union and proceed with other necessary jobs so as to organize a conference for the establishment of the union of cooperatives.

c/ Founding members of the union of cooperatives shall elect or appoint their representatives to compile and send business registration dossier of the union of cooperatives to the provincial-level business registration agency.

Article 23.- Working relations between the ministries, ministerial-level agencies as well as People’s Committees of the provinces and centrally-run cities and federations of cooperatives

1. Federation of cooperatives is a socio-economic organization jointly and voluntarily set up by cooperatives and unions of cooperatives. Federations of cooperatives shall be organized according to branches and economic domains. Federations of cooperatives shall be set up at the central level and in the provinces and centrally-run cities.

The central federation of cooperatives shall be organized and operate according to its charter recognized by decision of the Prime Minister; the provincial/municipal federations of cooperatives shall be organized and operate according to their charters recognized by decisions of the presidents of the provincial/municipal People's Committees. The charters of the provincial-level federations of cooperatives must comply with the charter of the central-level federation of cooperatives.

2. The ministries, ministerial-level agencies and provincial/municipal People's Committees shall create conditions for federations of cooperatives to:

a/ Participate in study and formulation of regimes, policies, plannings, plans and programs for development of cooperatives;

b/ Assume the prime responsibility for, or participate in the implementation of, programs and projects related to development of the collective economy; directly organize or participate in the organization of training and fostering courses for managerial personnel of cooperatives under the State's plan;

c/ Attend and present their opinions on collective economy development and policies for cooperatives at the Government's meetings (for central federation of cooperatives) or at meetings of the provincial/municipal People's Committees (for provincial-level federations of cooperatives);

d/ Supply legal documents and documents on undertakings and policies related to the development of cooperatives;

e/ Disseminate the Law on Cooperatives and relevant legal documents on development of cooperatives and popularize typical and advanced cooperative models;

f/ Participate in bilateral and multilateral international cooperation related to the development of cooperatives;

g/ Provide material supports and funding as well as necessary conditions for operation of federations of cooperatives.

3. Federations of cooperatives shall have to perform assigned tasks in coordinative relations and submit to supervision and inspection by the State agencies in this regard.

Article 24.- State management over cooperatives by ministries and ministerial-level agencies

1. Contents of State management:

a/ To submit to the Government and the Prime Minister strategies and plans for development of cooperatives in the branches and domains under their management;

b/ To submit to the Government and the Prime Minister for promulgation mechanisms and policies of encouraging and supporting the development of cooperatives in the branches and domains under their management;

c/ To provide guidance on mechanisms and policies of encouraging and supporting the development of cooperatives in the branches and domains under their management;

d/ To provide guidance on the application and transfer of sciences and technologies; provide information, marketing and trade promotion supports for cooperatives;

e/ To formulate regime for, and organize the training and fostering of managerial and executive personnel of cooperatives;

f/ To direct the summing up of practical experiences, multiply models of efficiently-operating cooperatives;

g/ To organize and direct international cooperation on cooperatives;

h/ To inspect the observance of legislation on cooperatives.

2. Responsibilities of the ministries and ministerial-level agencies:

a/ The Ministry of Planning and Investment shall assist the Government in exercising the uniform State management over cooperatives throughout the country;

b/ The Ministries of Agriculture and Rural Development; Trade; Industry; Transport; Construction; Fisheries; Education and Training shall exercise the uniform management over cooperatives in the domains under their respective management;

c/ Vietnam State Bank shall guide the regime and principles for credit activities within cooperatives; exercise the uniform management over people's credit funds;

d/ The Ministry of Home Affairs shall guide the ministries', ministerial-level agencies' and provincial/municipal People's Committees' specialized bodies for State management over cooperatives;

e/ The Ministry of Finance shall guide the financial policies for cooperatives; allocate funding for training and fostering of managerial personnel and people holding other positions in cooperatives;

f/ The Ministry of Labor, Ward Invalids and Social Affairs shall guide the payment of social insurance premiums by cooperative members according to the provisions of Article 4 of this Decree;

g/ The Ministry of Natural Resources and Environment shall guide the assignment and lease of land to cooperatives;

h/ The Ministry of Science and Technology shall guide the transfer of technologies to cooperatives and guide cooperatives in the application of new technologies and protection of their intellectual property rights.

3. Based on their respective functions, tasks and powers, the ministries and ministerial-level agencies shall specify the organization of the apparatus to assist the ministers or the heads of the ministerial-level agencies in performing the function of State management over cooperatives belonging to the ministries or ministerial-level agencies.

Article 25.- State management by the People's Committees of all levels over cooperatives

1. Responsibilities of the People's Committees of the provinces and centrally-run cities (hereinafter referred to collectively as the provincial-level):

a/ To organize and guide the implementation of strategies and plans for development of cooperatives in the localities;

b/ To direct and inspect the implementation of programs on training and fostering of managerial and executive personnel of cooperatives in the localities under assignment by the Government or the Prime Minister;

c/ To coordinate with the Fatherland Front, the federations of cooperatives and provincial-level Peasants’ Associations in elaborating plans and directing the dissemination and popularization of the legislation on cooperatives, the new model of cooperative among cooperatives members and subjects that wish to join cooperatives; and organize the implementation of programs and projects on development of cooperatives in their respective localities;

d/ To direct the provincial-level business registration agencies in granting and withdrawing cooperative-business registration certificates; consider the granting and withdrawal of operation licenses of branches, representative offices and attached units of cooperatives or unions of cooperatives, that have registered their business at the provincial level;

e/ To support cooperatives that have registered their business at the provincial level in carrying out administrative procedures for reorganization, dissolution or bankruptcy;

f/ To settle according to their competence cooperatives' and unions of cooperatives' complaints and denunciations against acts of violating the legislation on cooperatives; protect the legitimate rights and interests of unions of cooperatives, cooperatives, cooperative members and laborers in cooperatives;

g/ To propose the Government and the Prime Minister to amend and/or supplement policies for development of cooperatives;

2. Responsibilities of the People's Committees of rural districts, urban districts, provincial towns and cities (hereinafter referred collectively to as district level):

a/ To organize the implementation of plans on propagation and dissemination of the legislation on cooperatives and models of new-type cooperative among cooperative members and subjects that wish to join cooperatives; inspect, sum up and evaluate the situation of development of cooperatives in districts;

b/ To direct business registration agencies in granting and withdrawing cooperative-business registration certificates; consider the granting and withdrawal of operation licenses of branches, offices and attached units of cooperatives that have registered their business at the district level;

c/ To support cooperatives that have registered their business at the district level in carrying out administrative procedures for their reorganization, dissolution or bankruptcy;

d/ To settle according to their competence cooperatives' and unions of cooperatives' complaints and denunciations against acts of violating the legislation on cooperatives; protect the legitimate rights and interests of cooperatives, cooperative members and laborers in cooperatives that have registered their business at the district level.

3. Responsibilities of the People's Committees of communes, wards and townships (hereinafter referred collectively to as the commune level):

a/ To organize the propagation and dissemination of the legislation on cooperatives as well as the Party's and State's undertakings on development of the commune-level cooperatives;

b/ Basing themselves on law provisions, to create conditions for subjects that wish to establish cooperatives to establish them and conduct their operation in a convenient manner.

Article 26.- Implementation provisions

1. This Decree takes effect 15 days after its publication in the Official Gazette.

2. For cooperatives and unions of cooperatives that have registered business before the effective date of the 2003 Law on Cooperatives:

a/ They shall not have to re-register their business but have to amend and/or supplement their charters according to the provisions of Article 12 of the 2003 Law on Cooperatives, which must be adopted at the nearest congress of cooperative members, counting from the effective date of this Decree;

b/ In case of a change of their business registration places, they must make re-registration according to the provisions of the 2003 Law on Cooperatives;

c/ When changing or adding their production and/or business lines, they must send written notices to the business registration agencies where they have registered their business and strictly observe the provisions of Clauses 2, 3 and 4, Article 3 of this Decree if the concerned production or business lines are the conditional ones or the ones that require legal capital or professional practice certificates.

3. All previous regulations that are contrary to this Decree are hereby annulled.

4. Cooperatives that fail to be organized and operate according to the provisions of the 2003 Law on Cooperatives and this Decree shall voluntarily dissolve or be compelled to dissolve according to the provisions of Article 42 of the 2003 Law on Cooperatives and Article 21 of this Decree.

5. The people's credit funds shall, apart from the provisions of this Decree, be subject to separate regulations of the Government.

6. The Ministry of Planning and Investment shall coordinate with the relevant ministries and branches in guiding the implementation of this Decree.

7. The ministers, the heads of the ministerial-level agencies, the heads of the Government-attached agencies and the presidents of the provincial/municipal People's Committees shall, within the ambit of their functions, tasks and powers, have to organize the implementation of this Decree.

On behalf of the Government

Prime Minister
PHAN VAN KHAI